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Effect Service Of Process

Effect Service Of Process

Get Your Lawsuit Served Properly
By []A. Howle

Imagine going through all the trouble to open a lawsuit, prepare the legal documents, and get them served on the defendant. Then, a court tells you that service of process was invalid and your defendant doesn't have to come to court! To avoid this, make sure you know what constitutes proper service of your legal papers.

Getting court documents served on defendants and witnesses is actually more complicated than it seems. If you think you had your legal process properly served and a court disagrees, you may need to go back and find out what proper service exactly entails. It's not a matter of sending just anybody at any time to serve just anyone with the papers about your case.

Depending on your state laws and the types of documents you're trying to get served, you have considerations ranging from deadlines for service, whether it's allowable for somebody else to accept process on behalf of your defendant if they aren't available or are evading service, whether true or original documents must be served or if copies are okay, to whether the documents must be noted on or dated by the process server, to getting proofs of service filed before deadline, and having those proofs completed correctly. If something is done improperly, a court can order you to re-serve the defendant, or in worst case scenarios, dismiss the lawsuit entirely. So it's important to know what constitutes proper service and have it done correctly.

Professional process servers themselves often refer back to their state laws to keep all the rules straight, and some have even written reference books on the subject. Here are just a few points to give you an idea of what needs to be considered before sending somebody off to serve your lawsuit.

Simply speaking, there are several "manners of service" to effect the legal process. The most obvious is "personal service." This is when a process server delivers the court documents directly to the intended party. Ideally this occurs face-to-face, but depending on circumstances and your state law, it can occur by speaking through a door or curtained window, a speaker phone on an apartment building, or another place the person to be served is concealed, but has still been identified by the process server. Typically a personal service has to be completed several days or even weeks before a hearing date, again, depending on the type of document to be served and your state law.

Another manner of service is known as the "substitute serve, " where documents are given to somebody living with the party to be served, managing the office or space where they are employed, or managing the place where they receive mail. The deadline for a substitute service is usually set earlier than the deadline for personal service. However, sometimes "reasonable diligence" must be shown to the court prior to attempting substitute service, but what constitutes "reasonable" diligence is not rigidly defined. The court decides depending on the circumstances. As a general rule, several attempts at personal service must be made before resorting to a substitute serve. Meanwhile, substitute service is not allowed for certain documents.

When personal or substitute service cannot be effected, other manners of service could be acceptable, such as service by mail or publication in the legal notices section of the local paper. In recent years, service by e-mail and even social media sites have been deemed acceptable by some overseas courts.

These manners of service are further complicated by the type of documents to be served. Not all documents can be sub-served or served by mail or publication. Examples include subpoenas, judgment orders, and restraining orders. So if you have a judgement order compelling your debtor to appear in court to answer questions about their assets, the service of process would be invalid if the document were left with somebody else at the person's residence. Meanwhile a summons and complaint can be sub-served, but not if other documents included with them require personal service only, like an order to show cause, for example.

Considerations also have to be made for whether the party is a "doe" (unknown), a corporation, or a government agency. Who is authorized to accept service on behalf of these entities depends again on document type, deadline date, and court instructions where requirements aren't clearly defined. There's also the matter of when a service can take place. Some states don't allow legal papers to be served on Sunday or holidays.

Finally, who can deliver the documents? In most states the minimum requirement is that the person must be at least 18 years old. Depending on the documents to be served, a friend could deliver them for you. But not if that friend has a financial or legal interest in the outcome. Sheriffs are authorized to serve most process, but some departments have passed certain types of document service off to the private sector. State registered process servers can serve almost any type of document legally. Meanwhile private investigators are often exempt from registering as process servers with their state, but are sometimes not authorized to serve documents like writs and judgement orders (unless they are also registered process servers).

Again, most of these considerations depend on the laws in your state. Before attempting to get your documents served, refer to those laws. Also check with your local court's preferences regarding due diligence. Meanwhile it's probably safe to assume: Don't wait until three days before trial to send your 17-year-old nephew to sub-serve a lawsuit on your defendant's roommate.

Ms. Howle is a []process server in San Francisco.